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Decision No. 17,229

Appeal of K.S., on behalf of her son S.M., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17,229

(October 23, 2017)

The Law Offices of Ira S. Newman, attorneys for petitioner, Samuel L. Drukman, Esq., of counsel

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, S.M. (“the student”), is not a district resident.  The appeal must be sustained.

In May 2016, petitioner enrolled the student in respondent’s district for the 2016-2017 school year using an address in Elmont, New York that was located within the district (“in-district address”).  By letter dated December 1, 2016, respondent’s administrative assistant to the superintendent (“administrative assistant”) notified petitioner that a determination had been made that the student was not a resident of the district on the basis of “[a]ctual [r]esidence [e]lsewhere” and “[t]emporary [r]esidence [e]stablished for [p]urposes of [a]ttending [d]istrict [s]chools.”  The letter further notified petitioner that the student would be excluded from the district effective December 15, 2016.  Petitioner appealed the district’s determination and an administrative review was held on December 20, 2016.

By letter and report dated January 20, 2017, the administrative review officer notified petitioner that she had concluded that the student was not entitled to attend the public schools of the district because “[p]arental [r]esidence [was] [o]ut-of-[d]istrict.”  The letter further advised that the student would now be excluded from school effective February 3, 2017.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 27, 2017.

Petitioner asserts that the district’s decision was arbitrary and capricious because the review officer relied wholly on unsworn surveillance, for which petitioner has provided an explanation, of the facts and the district failed to take into consideration the student’s transitional family situation.  Petitioner claims that she and her children[1] reside at the in-district address, a house owned by her mother, and that she and her two youngest children temporarily stayed with her fiancé at the out-of-district address during the timeframe of the surveillance because she and her finance “recently had a baby daughter together following a difficult pregnancy.”  

Respondent argues that its decision is rational, supported by the record, and in compliance with applicable laws and regulations and, therefore, not arbitrary, capricious or unreasonable.

I will first address a procedural matter.  In addition to submitting a reply to respondent’s answer in this matter, petitioner also submits a response[2] to respondent’s affirmation in opposition to petitioner’s request for interim relief (“opposition papers”).  Petitioner’s response to respondent’s opposition papers is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817; Appeal of Gordinier, 52 id., Decision No. 16,433).  However, since both parties are represented by counsel and respondent does not object to this submission, I accept petitioner’s response to respondent’s opposition papers as in the nature of a reply to respondent’s answer for purposes of §§275.3 and 275.14 of the Commissioner’s regulations.

However, with respect to both the response and the reply, I note that the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply and response, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Education Law §3202(1) provides, in pertinent part, as follows:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In support of its position that the student is not a district resident, respondent relies primarily on its surveillance evidence.  During its administrative review, respondent confronted petitioner with surveillance conducted as part of its residency investigation.  Specifically, respondent introduced a report dated November 20, 2016, from a company retained by the district to conduct surveillance of the out-of-district address.  The report indicated that on six mornings in November, commencing at approximately 6:00 a.m.,[3] the student was seen with an adult female, believed to be petitioner, leaving the out-of-district address in a vehicle registered to petitioner.  On all but one of those occasions, the student and petitioner were accompanied by an adult male and an infant.  Respondent also submitted direct evidence from its district attendance supervisor (“supervisor”) who testified that he conducted surveillance of the in-district address on five mornings in November 2016.[4]  The supervisor testified, and the surveillance reports indicate that on all five mornings, a vehicle registered to petitioner pulled up to the out-of-district address and the student and an adult male[5] exited the vehicle and entered the house; that the adult male then left the house and drove away in the vehicle registered to petitioner; and that later those mornings, the student’s grandmother exited the home with the student and his cousin and drove them in her car in the direction of the high school.[6]

While petitioner admitted at the administrative review that she and the student left the out-of-district address early on the mornings of the surveillance dates and returned to the in-district address, petitioner provides in this appeal reasonable explanation for her and her son’s temporary absences from the in-district address where she resides with the student and his siblings that is consistent with the surveillance evidence.  Petitioner states that she had a baby in May 2016 and that in the fall of 2016, her fiancé invited her to spend part of the week at his apartment so that he could “share the care of [their daughter] and to plan a future together.”  Petitioner states that when she stayed at the out-of-district address part of the week, the student would ordinarily accompany her.  Petitioner explains that she works in Manhattan and to be at work on time, she had to leave the out-of-district residence early in the morning and drop-off the student at the in-district address before 7:00 a.m. so that her mother could drive him to school when school opened.  Petitioner admits that she spent part of the week in October, November and December 2016 at the out-of-district address and asserts that “[t]his was never intended to be a permanent arrangement, since ... the lease on the [out-of-district] apartment was expiring soon ... and [they] intend to reside full-time at [the in-district address] ....”

Respondent does not address whether petitioner’s explanations are credible, but instead argues that petitioner’s testimony at the administrative review was not credible or persuasive because she initially denied ever staying at the out-of-district address.  Indeed, a review of the administrative review transcript indicates that petitioner initially testified that she does not stay at the out-of-district address.  After the district presented the surveillance evidence, the administrative review officer again questioned petitioner, who then acknowledged that she and the student sometimes stay at the out-of-district address.  Petitioner was not represented by counsel during the administrative review and I agree with petitioner’s counsel herein that a review of petitioner’s testimony appears to indicate that petitioner “appeared to be in a state of some emotional distress ... which affected her ability to explain the family’s circumstances in a clear manner.”

In support of her petition, petitioner submits three sworn affidavits. The affidavit from her mother states that petitioner and the student live with her at the in-district address and that even when they spent nights at the out-of-district address “they continued to spend most of their time at [the in-district address].”  The affidavit from her fiancé, dated February 10, 2017, indicates that since the care of both petitioner and the baby was burdensome for petitioner’s mother, he felt responsible to help out, and in the fall of 2016 he invited petitioner to spend part of the week at his apartment (the out-of-district address), so that he could help care for the baby and take some of the burden from petitioner’s mother.  He further states that petitioner never intended to make his apartment her permanent home.  On the contrary, he states that the lease for his apartment at the out-of-district address expired at the end of January 2017, and also states that that he and petitioner “discussed getting married in the near future” and that he intends “to move in with her at [the in-district address].”  Finally, the affidavit from her fiancé’s landlord states that he also lives at the out-of-district address and is “familiar with the comings and goings of all residents of the house.”  He states that petitioner “would sometimes stay overnight.”[7] 

Petitioner also submits several forms of documentary evidence including a wage and tax statement, her driver’s license, a bank account statement, and a credit card bill which all list the in-district address. While, generally, documentary evidence indicating the use of an in-district mailing address is not dispositive where contrary surveillance evidence exists, in this case, the surveillance has been otherwise refuted or explained (see e.g. Appeal of Stewart, 47 Ed Dept Rep 92, Decision No. 15,637).  As described above, in addition to her documentary evidence, petitioner has provided explanations, supported by sworn affidavits, that are consistent with respondent’s surveillance evidence. 

In its opposition papers and answer, respondent points to “additional evidence linking [p]etitioner to the [out-of-district address].”  Respondent submits a deed to the out-of-district address,[8] a report from CLEAR/Thompson Reuters, and a printout of searches from and  I do not find such evidence dispositive of petitioner’s residence.  The deed indicates that petitioner’s fiancé’s landlord purchased the property in December 2014, which is irrelevant to determining where petitioner resides.  Further, while respondent argues that the reports “link” and “associate” petitioner with the out-of-district address, they also associate her with several other addresses including the in-district address.  Also, it is not unreasonable that petitioner would be associated with the address of her fiancé and daughter’s father.  Although one of the reports reveals a landline telephone number in petitioner’s name at the out-of-district address, in her reply, petitioner denies that the number has ever been her telephone number - landline or mobile.  

Therefore, on this record, I find that respondent’s evidence is not dispositive in light of petitioner’s explanation and documentary evidence.  While I acknowledge, respondent’s credibility concerns, I note that respondent is free to conduct further investigation of petitioner’s residency and render a determination with respect thereto, consistent with the procedures and protections outlined in 8 NYCRR §100.2(y).  I find that, on this record, petitioner has met her burden of proof (see e.g. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,199).

In light of this disposition, I need not consider the parties’ remaining contentions.  


IT IS ORDERED that respondent permit S.M. to attend school in the Sewanhaka Central High School District without the payment of tuition.



[1] Petitioner has three children: the student at issue in this appeal, an adult son and an infant daughter.




[3] Surveillance was conducted at the out-of-district address on November 3, 4, 14, 15, 16, and 18, 2016.


[4] Surveillance was conducted at the in-district address on November 21, 22, 23, 29 and December 2, 2016. 


[5] On four of the five mornings, the surveillance reports indicate that a “baby,” “infant” or “little girl” was also present. 


[6] I note that during the administrative review, the supervisor’s surveillance reports were submitted as evidence and are included in the record before me. 


[7] Petitioner also submits a notarized statement from a neighbor of the in-district address who states that the student lives at the in-district residence and that he “plays with [her] daughter and other neighborhood kids.”  Another notarized statement from a “close friend of the family” states that she has “visited the [in-district] home on many occasions and can verify that [petitioner and her children] live at this address.”  Petitioner also submits unsworn, unnotarized statements from a neighbor and from a friend of her oldest son.


[8] The deed is printed from what appears to be the website of the New York City, Department of Finance, Office of the City Registrar.